Land and Environment Court of New South Wales CITATION : Lippman & Associates v Waverley Council [2005] NSWLEC 591 APPLICANT Lippman & Associates PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10616 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Subdivision - minimum size allotment - streetscape - impact on adjoining properties Environmental Planning and Assessment Act LEGISLATION CITED: State Environmental Planning Policy No. 1 Winten Property Group v North Sydney Council [2001] NSWLEC 46; CASES CITED: Totem Queens Park v Waverley Council [2004] NSWLEC 712 DATES OF HEARING: 14/10/2005 - On-site Hearing and Findings; 23/12/2005 - Amended plans and hearing DATE OF JUDGMENT: 12/23/2005 EX TEMPORE JUDGMENT DATE : 12/23/2005 APPLICANT Mrs M-LTaylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton,solicitor SOLICITORS Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10616 of 2005 23 December 2005 Lippman & Associates v Waverley Council JUDGMENT Extempore Findings of On-site Hearing 14 October 2005 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council's refusal of a development application for a building containing two dwellings with a proposed subdivision at the address known as 3 Bay Street, North Bondi. Currently on the site there is an existing building of an art deco design and the buildings on either side of the subject site are also of a similar period although it is noted that there have been alterations to the presentation of these buildings to the street. 2 The council identified a number of issues in its statement, in particular, I will go first of all to the State Environmental Planning Policy No. 1 objection. The parcel of land is 456.5 sq m and the council has a minimum subdivision size of 232 sq m. The proposal is to subdivide the land with the party wall forming the future boundary between the two Torrens title properties yielding 228 sq m per lot. The SEPP 1 objection is a threshold question and therefore I must assess it as such. The applicant provided a SEPP 1 objection and the council generally agrees with the stated underlying objectives of the minimum allotment size contained in cl 12.2 of the Waverley LEP. The relevant judgment that I refer to is the one referred to by Mrs Taylor that is Winton v North Sydney Council wherein his Honour Justice Lloyd set out the procedures one must go through in terms of an assessment under SEPP 1. The minimum allotment size is a standard and in my assessment of the objection to vary the standard I must look at the underlying objectives if they are not stated as such. The applicant's SEPP 1 objection refers to the aims of the plan in terms of housing that is "to provide for a range of residential densities and ensure that new housing is compatible with surrounding development". The zone objectives of the 2(b) zone are also stated that is to allow a variety of housing forms and to improve the amenity and character of the area. 3 The ultimate development proposed will present as two-storey semi-detached dwellings. The adjoining properties, to both sides of the art deco properties have dwellings on each floor of the two-storey buildings. The underlying objectives include consideration of the amenity of adjoining properties in terms of subdivision and to look at whether the proposed subdivision would provide for an appropriate density or one that is in keeping with the area in general. As I said the council does not quibble with the objectives in terms of those articulated by the applicant and in my assessment I have also considered these objectives. In terms of the SEPP 1 objection it is noted that the adjoining properties on either side are of similar dimensions to the existing subject lot and is also noted that there are properties in Hasting Street East that are a smaller subdivision size. One must also look at whether in terms of the subdivision the allotment size is commensurate with development in the area and that the ancillary uses that are normally associated with this density of development within the area can be accommodated on the size of the proposed allotment. 4 In this respect the SEPP 1 objection also overlaps with a merits assessment of the development. For small subdivisions it is also appropriate to look at the built form proposed because this informs one in an assessment of a small subdivision of the ultimate built form and the impacts that may be created. When a subdivision of this size is proposed it is instructive to look at the ultimate built form and subdivision should not take place until the proposed building is developed and then at the end of the day it is a matter of only ownership and titling arrangements but given that there would be no adverse impacts the underlying objectives and the objectives are satisfied in my assessment. The SEPP 1 objection is well founded and I am of the view that the SEPP 1 objection in the circumstances of this case should be upheld. As I said I will also assess the other elements of the development in terms of council's issues however in this particular case we are looking at an overlap in terms of the assessment which is not unusual and this was identified by Stein and others in earlier judgments of this Court. 5 The subject site is in the 2(b) zone under the Waverley Local Environmental Plan and there are a number of relevant objectives that I will identify for the Court record: to allow for a variety of housing forms including dwellings and residential flat buildings; to maintain and to improve the amenity of the characteristics of the locality. Development allowed with consent includes: dwelling houses; dual occupancies; and residential flat buildings. The LEP also contains other relevant clauses that I must have regard to in assessing this application. One identified by the council is an objective of this plan is to promote development that is consistent with the four principals of ecologically sustainable development. In the assessment of development applications council is to take into consideration the precautionary principle; intergenerational equity; conservation; biological diversity. One that has been identified for the precautionary principle is the certainty that the development application provides for. 6 I have commenced or prefaced my findings with the above because I am of the opinion that there are further details that must be required before any orders could be issued on the subject development application. And in that regard council's concern about certainty is acknowledged. 7 In terms of the other clauses that I must have regard to, they are in terms of the aesthetic appearance of development when viewed from the Pacific Ocean. It is proposed that the swimming pools adjoining the rear boundary and the finish is a sandstone cladding where the existing cliff face is not retained. The visual amenity impact when viewing the proposal from the Pacific Ocean in my opinion would not warrant refusal of the application and similarly when viewed from the reserve behind the site. 8 I note that there is a reserve that adjoins the subject site, or a public open space area, with a sheer drop to the water or the rock platform below but generally not accessed by pedestrians. 9 The heritage conservation clauses that I must have regard to is cl 49 of the LEP, "the council must have regard to the effect of the proposed development on heritage items and on conservation areas". This site is not the subject of a conservation area but there is a heritage dwelling on the corner of Brighton Boulevarde and Bay Street and in my assessment I agree with the Court-appointed expert Mr Phillips the proposed development will not have an adverse impact in terms of cl 49 or the LEP. The proposal is one that is not directly adjoining, and is some distance from the heritage building and it is not dissimilar to other development in the area that is closer to the heritage item and such development does not adversely impact on the heritage item. 10 The proposal provides for two x 2-bedroom two-storey dwellings with a swimming pool at the rear of each and semi-basement parking that requires excavation. The Court has had the benefit of the Court-appointed expert's report and the Court-appointed expert has also provided comments on the residents concerned that gave evidence today at these proceedings. The Court-appointed expert is of the opinion that the proposed development will sit comfortably in the streetscape, it is of a quality design, a modern architecture designed building appropriate setbacks to the streetscape. The council considered that the provisions of its development control plan for dwelling houses, that is s 6, are not complied with. The streetscape and visual impact section, the objectives of this are to encourage dwelling house development to be of a high standard incorporating good building design and detail and there is no argument that the proposed development is one that is of good building design and detail, but my assessment must go further than this as pointed out by Mr Staunton in Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712 "good architecture does not excuse a modern building or any building from not fitting in with the context of an area and that one must have regard to the impact of that modern architecture". In this regard one must look at the context and while the proposed building does not reflect the pitch of the roofs of the buildings next door or the materials finishes this is not the test. This is not a conservation area and it would mean that you would never get modern architecture if it always must replicate or mimic the adjoining buildings. The test is whether there are adverse impacts on adjoining properties whether the bulk and scale of the proposed building is such that it is inappropriate for the adjoining properties and others in the vicinity. 11 Clearly from the site view today around the street and even if one looks at the visual catchment there is an eclectic mix of development and in this regard then there is also a clear trend in terms of recent redevelopment of properties and the proposed future or the future character of the area is one that will not remain static and even if the buildings on either side are not redeveloped I am satisfied the subject development will sit comfortably in the streetscape and will not impact on the adjoining buildings. This is not an overdevelopment of the site, clearly it is one that is most conforming in terms of council's numerical controls however this is not always the test either, one must look at the character of the area, one must have regard to whether there are adverse impacts created. 12 There are a number of concerns raised by residents, in particular, the owner of property at No. 1 and there were also concerns raised from a resident at No. 5. I am satisfied the proposed development has been worked through in terms of ameliorating adverse impacts and I say the applicant has been prepared to setback the roof terrace such that there will not be overlooking impacts of adjoining properties and also with respect to the boundary fencing to ensure that there is a view sharing and mutual view sharing between those properties and that will be a condition of consent as well. 13 The development will be one that certainly represents change in the streetscape but this is also not the test, change itself is not or should not be condemned as I said we would never have any modern architecture. However, it is important the building provides a suitable fit and in terms of the built form and in terms of its bulk the proposal is not incompatible with the buildings on either side. The envelope is not excessive and certainly one that complements and is harmonious in the streetscape and in particular with the buildings on either side. 14 The other issues that have been raised by the council, include the excavation and carparking. I do note that council has a development control plan for carparking and in fact it is more comprehensive, Parking and Transport DCP No. 14. This sets out a number of objectives and the objectives in accordance with council's strategic framework for the area, that is to establish parking policies that reflect parts of the LGA in terms of proximity to public transport and the provision of off street parking in the subject area and consideration to urban design. 15 There is no issue and the parking proposed in a semi-basement carpark does not dominate the streetscape but the issue is the fact that the numeric number of carparking spaces proposed is the concern of the council. Council's DCP provides for one carparking space per dwelling of two-bedrooms in the Parking Zone B. The proposal provides for two carparking spaces with a shared crossing from the street such that the street frontage will provide for the parking of one car on street and access to the four carparking spaces in the semi-basement level of the building. The other objectives of the Council's Code is to ensure that the transport needs of development are met by providing bicycle storage in residential areas and that establish parking policies that encourage walking, cycling, public transport uses and thus reduce car dependency. 16 The council considered that the parking should be amended such that there is only one parking space per dwelling. The circumstances of this case are that I can see in the local vicinity there is parking restrictions providing resident parking or a two hour limit. I am also conscious of the fact that the adjoining property at No. 1 has parking in the front yard area, for more than one car per dwelling. Clearly the demands of the area are such that parking is at a premium and in terms of the development proposed which is a high quality development, I am satisfied that the car ownership may be such that two carparking spaces per dwelling is not unreasonable or excessive. I have used the DCP as a central and focal point in my consideration and the location of this property is one that in itself would encourage the usage of the public transport infrastructure and also walking within the area due to the amenity of the area generally and I am satisfied that the provision of the additional parking in the circumstances of this case will not undermine council's controls. Furthermore, given the variables or characteristics in terms of the parking demand within the area the fact the site will still allow for one vehicle to be parked on street in terms of a contribution for the community with only one crossing I am satisfied that the design of the parking is one that satisfies council's controls. This is despite the fact that the number of spaces exceeds council's one maximum space per dwelling. 17 The issues with respect to the LEP of the objectives zone of enhancing the amenity of the area and to maintain and improve the amenity and existing characteristics of the locality. I am satisfied that the proposed development will represent a high quality development and in terms of the existing locality it should be well received. The amenity of the area is not adversely impacted by the proposed development and in my assessment the objectives of the zone are also appropriately satisfied. In terms of the council's LEP I must have regard to development that satisfies the objectives of the zone. 18 The other issues that the council raised relates to the extent and amount of excavation. The need for dilapidation reports is proposed as a condition of consent. Clearly that is an appropriate course of action to have a pre-dilapidation and post-dilapidation reports prepared where there is excavation close to boundaries. 19 The issue of the excavation at the rear is one that needs further details provided for the swimming pools, that is its juxtaposition with the rock face or cliff at the rear of the subject property in particular because of the adjoining public land. The plans have not been amended during these proceedings apart from some minor amendments with setback to roof terraces, etc. but the plans it would appear have been amended to incorporate or to overcome some of the residents concerns before the matter was assessed by the Court. 20 As I stated the Court also heard from resident objectors and I have considered their concerns and with respect to aboriginal artifacts or relics and carvings the conditions should attach at the end an advice that the applicant must have regard to the provisions of the Heritage Act and this will provide the necessary focus to ensure that those matters are taken into consideration at the time of excavation works. 21 Council raised issues about the materials to ensure given the seaside location for the oceanfront that the materials are durable and can be maintained. This matter has also been satisfied by the applicant agreeing to certain conditions. 22 As I said my assessment of the SEPP 1 in many respects overlaps with the merits assessment of the total development and I am satisfied that the form or the outcome in terms of the development on this site is not impacted by the subdivision of the land in particular as discussed earlier it must be built before any subdivision can take place to ensure the built outcome is appropriate. 23 I conclude today by saying that there will need to be further details provided to the Court as discussed earlier about the exact location of the cliff face relative to the boundary and this can be provided to the Court and there should also be details as to the method of rock excavation to ensure the stability of the rock face cliff to the public open space area. Hearing 23 December 2005 24 Following the on-site hearing the applicant submitted a detailed survey to show the location of the rock face adjoining the public reserve on the southern boundary and amended plans to show the swimming pool for the eastern dwelling moved some 600 mm to the north together with geotechnical and construction advices. The respondent tendered amended conditions to require a dilapidation report and construction methods together with advice to comply with the Heritage Act in relation to aboriginal relics. 25 With the above information I am now satisfied that there is no reason for the Court not to grant consent and issue formal orders in accordance with my findings above and that the amended development proposal subject to the amended conditions provides certainty as to the outcome. 26 Therefore the Orders of the Court are: 1. The appeal in respect of the property known as No. 3 Bay Street, North Bondi, is upheld. 2. The objection to vary the minimum subdivision standard of 232 sq m to 228 sq m is allowed under State Environmental Planning Policy No. 1 . 3. The development application submitted to Waverley Council and as amended for the demolition of the building and the erection of two attached dwellings and subdivision is approved subject to the conditions in Annexure 'A'. 4. The exhibits, except the amended plans and conditions, are returned to the parties. _______________________ J S Murrell Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.